Análisis y señalamiento de diferencias entre las instituciones protectoras o tuitivas de ambas jurisdicciones instituciones protectoras o tuitivas de ambas jurisdicciones

The Human Rights Act (HRA) 1998 came into force across the UK in October 2000.⁴⁹ Prior to the HRA, the right to freedom of thought, conscience and religion was not expressly protected under domestic law. The HRA introduced this right into domestic law through Article 9 of the European Convention on Human Rights (ECHR), as well as safeguarding equality through Article 14 ECHR which requires non-discrimination in the enjoyment of all other Convention rights. Section 13 of the HRA requires courts to „have particular regard to the importance‟ of the right to freedom of thought,

conscience and religion; however, commentators generally agree that it has made little practical difference (Knights, 2007: 34, 67).

Under Article 9(1), the right to freedom of thought, conscience and religion (including the right to change one‟s religion or belief) is absolute; it may never be interfered with. The right to manifest one‟s religion or belief, either alone or in community with others and in public or private „through worship, teaching, practice and observance‟ is qualified; it may be interfered with in certain circumstances which are set out in

Article 9(2) (and explained below). Most decisions at the European Court of Human Rights (ECtHR) in Strasbourg concern the right to manifest one‟s religion or belief.

In practice, the ECtHR grants states discretion (also known as the „margin of

appreciation‟) to determine the precise relationship between church and state and the place of religion or belief in the public sphere. The ECtHR thereby recognises the

49 The devolved administrations in Scotland, Wales and Northern Ireland were bound by the Act from their inception in 1999. The aim of the HRA is to „give further effect‟ in UK law to the fundamental rights and freedoms in the European Convention on Human Rights (ECHR). The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court of Human Rights (ECtHR) in Strasbourg.

Under section 2 of the HRA, domestic courts must „take into account‟ decisions of the ECtHR, whether they relate to cases against the UK or cases against other Council of Europe states. Domestic courts are not bound to follow Strasbourg decisions; in practice, they do apply their own interpretation and have sometimes made decisions that expressly divert from Strasbourg judgements in comparable cases.

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cultural, historic and philosophical differences between nations and the need for sensitive matters of religion or belief to be closely scrutinised at the domestic level.

Determining whether there has been an interference with Article 9(1)

Sandberg (2011a: 83-86) identifies three „filtering devices‟ that have been used by the ECtHR in Strasbourg to exclude claims by establishing that Article 9(1) has not been interfered with (also known as the „interference stage‟). These are:

The definition filter, which asks whether the religion or belief warrants

protection. The ECtHR has seldom applied this filter.⁵⁰ The Court has clarified that the state cannot attempt to prescribe what constitutes a religion or belief and that these notions also protect „atheists, agnostics, sceptics and the unconcerned‟.⁵¹ It has established that religion or belief is essentially personal and subjective and need not necessarily relate to a faith arranged around institutions, but must pass certain tests: for example, it must attain a certain level of cogency, seriousness, cohesion and importance and be worthy of respect in a democratic society.⁵² Newer religions and beliefs such as scientology⁵³ have been included within the definition, as have pacifism,⁵⁴

druidism,⁵⁵ atheism,⁵⁶ secularism,⁵⁷ communism⁵⁸ and veganism.⁵⁹ See section 5.2 for an examination of definitional matters in domestic jurisprudence.

The „manifestation/motivation‟ filter, which requires that the claimant‟s actions manifest their religion or belief as opposed to being merely motivated by it; this includes a requirement that the claimant‟s actions are prescribed by the

50 A rare example is Pretty v UK No. 2346/02, 29.4.2002, concerning a belief in the notion of assisted suicide.

51 Church of Scientology Moscow v. Russia No. 18147/02, 5.4.2007, at para. 71.

52 Equality Act 2010 Explanatory Notes, para. 52.

53 X and Church of Scientology v Sweden No. 7805/77, 5.5.1979.

54 Arrowsmith v UK No.7050/75, 12.10.1978.

55 A.R.M. Chappell v UK No. 12587/86, 14.7.1987.

56 Angeleni v Sweden No. 10491/83, 3.12.1986.

57 Lautsi v Italy No. 30814/06, 18.3.2011.

58 Hazar, Hazar and Acik v Turkey Nos. 16311/90, 16312/90 and 16313/90, 11.10.1991.

59 X v UK No. 18187/91, 10.2.1993.

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particular religion or belief.⁶⁰ However, the ECtHR has in recent years chosen not to apply this distinction or to interpret it broadly to include any causal link between the claimant‟s action and their religion or belief and to include non-prescribed practices.⁶¹

The „specific situation‟ rule, which applies where someone has voluntarily submitted themselves to a system of norms; for example, by entering into a contract,⁶² enrolling at a university⁶³ or submitting to military service.⁶⁴ It establishes that there is no interference with Article 9 where an individual has put themselves in a situation which limits their ability to manifest their religion, and where they can choose to leave that restrictive context, even if doing so requires some personal sacrifice. More recent decisions of the Court indicate that it no longer endorses such an approach; interference has been found despite the claimants‟ apparent acceptance of a restriction.⁶⁵

As the filters are applied only rarely by the ECtHR, the question of whether there has been an interference (also described as whether Article 9 is „engaged‟) is commonly a formality; the Court then considers the merits of each case in detail using the criteria for justification under Article 9(2).

Determining whether interference with Article 9(1) is justified under Article 9(2) Under Article 9(2), freedom to manifest one‟s religion or belief is subject only to such limitations as are:

„prescribed by law‟; that is, they must be clear, publicly accessible, non-retrospective, and people must be able to understand the circumstances in

60 Arrowsmith v UK No.7050/75, 12.10.1978.

61 For example, Bayatyan v Armenia No. 23459/03, 7.7.2011, the Grand Chamber of the ECtHR found that where opposition to military service is motivated by a genuinely held religious belief, Article 9 will be engaged. See also Jakóbski v Poland No. 18429/06, 7.12.2010, in which the Court found that the refusal of a Buddhist prisoner‟s request for vegetarian food fell within the protection of Article 9 even though vegetarianism was not a mandatory requirement of Buddhism.

62 Stedman v UK No. 29107/95, 9.4.1997.

63 Karaduman v Turkey No. 16278/90, 3.5.1993.

64 Kalac v Turkey No. 20704, 1.7.1997.

65 For example, in cases concerning the prohibition on wearing the headscarf in universities and schools: Şahinv Turkey No. 44774/98, 10.11.2005; Dahlab v Sweden No. 42393/98, 15.2.2001; Dogru v France No. 27058/05, 4.12.2008.

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which it might be imposed and foresee the consequences of their actions with a degree of accuracy; and,

„necessary in a democratic society in the interests of public safety, for the

protection of public order, health or morals, or for the protection of the rights and freedoms of others‟.

The principle of proportionality

The principle of proportionality provides a structured way to determine how to balance competing interests on any particular set of facts and in any particular context. To be „necessary‟, interference with Article 9(1) must have a legitimate aim, i.e. it must reflect a pressing concern in a democratic society and have a specific purpose. It must also „be proportionate to the legitimate aim pursued‟.⁶⁶ This includes a requirement that the restriction is not arbitrary, irrational or ineffective. The principle of proportionality is also commonly expressed as pursuing the least restrictive

alternative or „not using a sledgehammer to crack a nut‟.

In recent years, domestic courts have - controversially - shown a greater propensity to use the filters to find that interference has not taken place, short-circuiting any need for a discussion of justification. Much commentary focuses on this

inconsistency and the uncertainty that now exists as to whether judges will find favour with Article 9 claims at either the interference or justification stage (see sections 5.3 and 5.4). The Equality Act 2010 (and its predecessors) has come to be viewed by legal practitioners as a firmer basis for pursuing claims relating to religion or belief.⁶⁷

4.3 Discrimination on the grounds of religion or belief

Laws prohibiting discrimination on grounds of religion or belief are also of recent origin. The legal landscape shifted with the 2000 EU Framework Employment Directive, implemented in the UK by Employment Equality (Religion or Belief) Regulations 2003, which introduced obligations on employers and providers of

vocational training not to discriminate, victimise or tolerate harassment on grounds of religion or belief (Knights, 2007, Chapter 5; Vickers, 2008, Chapter 5). This was

66 Serif v Greece No. 38178/97, 14.12.1999 at para. 49.

67 For example, in R (Watkins-Singh) v The Governing Body of Abedare Girls’ High School, [2008] EWHC (Admin) 1865, the claimant‟s legal team relied on race and religious

discrimination laws rather than Article 9 to protect her freedom to wear a Sikh kara bangle at school.

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followed by the Equality Act 2006 and the Equality Act 2010, which replaced the 2003 regulations and a raft of other anti-discrimination laws (Hepple, 2011).

The Equality Act 2010 prohibits direct discrimination, indirect discrimination,

harassment and victimisation in relation to certain areas such as goods and services, employment and education.⁶⁸ This report focuses on direct and indirect

discrimination.

Direct discrimination

Direct discrimination occurs when A treats B less favourably than A treats or would treat others.⁶⁹ The law provides protection against less favourable treatment

„because of a protected characteristic‟; this includes association with someone who has a protected characteristic. For example, it is direct discrimination if A refuses to offer a job to B because B is a Muslim or because B‟s husband is a Muslim. It also includes less favourable treatment of someone because they are perceived to have a religion or belief, even if this is not in fact correct. In direct discrimination cases, the claimant must first prove facts from which the tribunal can conclude that unlawful discrimination has occurred. The burden of proof then passes to the respondent.

Direct discrimination cannot be justified; there is no defence of reasonableness. The only defence open to the respondent is to prove that no discrimination occurred.

Courts and tribunals have generally taken a restrictive approach to direct discrimination and successful claims are rare.⁷⁰

Indirect discrimination

Indirect discrimination occurs where an apparently neutral provision, criterion or practice puts persons with a particular protected characteristic at a disadvantage compared with others who do not share that characteristic and applying the provision, criterion or practice cannot be objectively justified. For example, if an employer introduces a new rota that requires all employees to be available for work on Sundays, this puts practising Christians at a particular disadvantage and may be indirectly discriminatory unless it can be justified; for example, because of a

compelling business need.⁷¹

68 Harassment on grounds of religion or belief is only prohibited in relation to employment.

69 Equality Act 2010, s.13.

70 See Bodi v Teletext [2005] ET Case No. 3300497/2005, 13-14 October 2005, in which the claimant successfully argued that he had not been shortlisted for a job on grounds of his Asian race and/or Muslim religion.

71 See Williams-Drabble v Pathway Care Solutions [2004] ET Case No. 2601718/2004, 2 December 2004.

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The operation of indirect discrimination is comparable to that used in Article 9 cases in the sense that the court or tribunal determines whether there has been an

interference (or „disadvantage‟), and if so, whether it can be justified. A key distinction is that the law on indirect discrimination does not protect solitary disadvantage; it must be shown that the provision, criterion or practice puts „persons‟ of the claimant‟s religion or belief at a particular disadvantage as well as actually disadvantaging the claimant. This requirement to show group disadvantage has been criticised for leaving individual believers unprotected from indirect discrimination (Vickers, 2009a) (see section 5.4).

There have been a number of successful indirect discrimination claims, for example, relating to working hours⁷² and religious dress.⁷³ Other claims have, for various reasons, failed either on grounds of either interference (disadvantage)⁷⁴ or

justification.⁷⁵ This has given rise to concern that some of the same factors which have inhibited the success of Article 9 claims may also prevent successful indirect discrimination claims in a manner which is unduly restrictive of claims based on religion or belief (see section 5.4).

Exceptions relating to religion or belief

The Equality Act 2010 contains exceptions permitting discrimination in certain limited and specified circumstances. Some relate to religion or belief. A distinction can be made between religion or belief exceptions that relate to employment⁷⁶ and those that relate to the provision of goods and services.⁷⁷ Both have proved contentious;

we examine this controversy in sections 6.6 and 6.7.

72 For example, Fugler v MacMillan - London Hairstudios Ltd ET Case No. 2205090/2004, 21-23 June 2005, concerning a Jewish claimant who was disadvantaged by a requirement to work every Saturday when no attempt had been made by her employer to rearrange her duties.

73 For example, Noah v Sarah Desrosiers (trading as Wedge), ET Case No. 2201867/2007, 29 May 2008, concerning a Muslim applicant for a job in a hair salon whose interview was terminated because she was wearing a headscarf and the salon required stylists to display modern hair styles; the tribunal found that the respondent had accorded disproportionate weight to this business requirement.

74 Most controversially, Eweida v British Airways [2010] EWCA Civ 80.

75 For example, Azmi v Kirklees Metropolitan Borough Council UKEAT/0009/07/MAA, 30 March 2007.

76 Equality Act 2010, Schedule 9, paras. 2-3.

77 Equality Act 2010, Schedule 23, paras. 2 and 29.

47 Public sector equality duty

The 2010 Act extends and strengthens the public sector equality duties. Previously, these applied only to race, sex and disability; the new single general public sector equality duty applies to all protected characteristics, including religion or belief. The duty has three elements:

eliminating discrimination, harassment, victimisation and any other conduct that is prohibited by the Act;

advancing equality of opportunity between persons who share a relevant characteristic and persons who do not share it; and

fostering good relations between persons who share a relevant characteristic and persons who do not share it.⁷⁸

The duty is placed on most central and local government authorities, health

authorities, schools, and the police. Itcame into force in April 2011. See section 9.4 for a discussion of issues involved in implementing the duty in relation to religion or belief.